How to replace Judial Review

[Contumacious]

The problem is that fascist/socialist scumbags like Obama also gets to nominate Justices to the Supreme Court.

Do you want one of those "justices" to abolish the 2A under the guise of judicial review?

.

I don't agree.

The problem is the courts have usurped legislative powers expressly forbidden in the Constitution, thus destroying the system of checks and balances needed for honest government.

Elena Kagan is an abhorrent specter, more appropriate to the Khmer Rouge than the USA, but if the intended checks against judicial power were in place, the damage even she could cause would be contained. It is the corruption of the system that is the true problem.

Yes, of course.

The Founding Fathers never imagined that Americans, having suffered through King George's tyranny , would ever allow power to be concentrated.

They were wrong. So , how do we force the scumbags to stop activism and limit themselves to just reviewing a case without interjecting their , or their political party , opinion.

.

 

[Uncensored2008]

What's the fallacy? You don't want the Court to have the power of judicial review. You don't want the Court to have the power to strike down unconstitutional laws.

Therefore you don't want the protections offered in the 2nd amendment to be enforceable.

What I want or don't want is irrelevant. There is no Constitutional basis for Judicial Review. Alexander Hamilton argued for exactly the sort of power that Marshall usurped in MvM. Why was this not addressed through an Amendment, after it failed to gain support at the CC?

Should law be created in an extra-legislative fashion? Should the Judiciary be empowered to dictate law through edict?

 

[kaz]

As any textbook on government will tell us, the power to interpret the Constitution is simply not expressed in the Constitution, and that is why Marbury is such an important Court decision, maybe one of the most important.

It is implied, and Marbury is simply an early example of how implied powers manifest themselves.

I think its more than "implied." Morever the Fed Paper 80 states

The judiciary authority of the Union is to extend:

Second. To treaties made, or which shall be made, under the authority of the United States, and to all cases affecting ambassadors, other public ministers, and consuls. These belong to the fourth class of the enumerated cases, as they have an evident connection with the preservation of the national peace.

Third. To cases of admiralty and maritime jurisdiction. These form, altogether, the fifth of the enumerated classes of causes proper for the cognizance of the national courts.

Fourth. To controversies to which the United States shall be a party. These constitute the third of those classes.

........

and the current court is creating corporate rights just as the Warren Court created individual rights.

Well, it's either "implied" or it's stated, and even most of the liberals have given up on the lie that it's stated. There is no other choice. And that the founders specifically wrote an enumerated power document, the idea that they included implied powers is ridiculous.

 

[Uncensored2008]

I think its more than "implied." Morever the Fed Paper 80 states

The judiciary authority of the Union is to extend:

Second. To treaties made, or which shall be made, under the authority of the United States, and to all cases affecting ambassadors, other public ministers, and consuls. These belong to the fourth class of the enumerated cases, as they have an evident connection with the preservation of the national peace.

Third. To cases of admiralty and maritime jurisdiction. These form, altogether, the fifth of the enumerated classes of causes proper for the cognizance of the national courts.

Fourth. To controversies to which the United States shall be a party. These constitute the third of those classes.

........

and the current court is creating corporate rights just as the Warren Court created individual rights.

But the Federalist Papers are not the Constitution, AND Hamilton argued for and failed to secure these positions. The idea that provisions not gained through legal and legitimate channels should be usurped using unelected jurists is at odds with honest and liberal government.

 

[NYcarbineer]

lol, I guess the Iraqis decided they didn't want to endure these interminable arguments on their messageboards when they put this clause in their constitution:

The Federal Supreme Court shall have jurisdiction over the following:

First: Oversight of the constitutionality of laws and regulations in effect.

Second: Interpretation of the provisions of the constitution.

...and...

Decisions of the Federal Supreme Court are final and binding for all authorities.

 

[bendog]

What's the fallacy? You don't want the Court to have the power of judicial review. You don't want the Court to have the power to strike down unconstitutional laws.

Therefore you don't want the protections offered in the 2nd amendment to be enforceable.

What I want or don't want is irrelevant. There is no Constitutional basis for Judicial Review. Alexander Hamilton argued for exactly the sort of power that Marshall usurped in MvM. Why was this not addressed through an Amendment, after it failed to gain support at the CC?

Should law be created in an extra-legislative fashion? Should the Judiciary be empowered to dictate law through edict?

What FP are you referring to? I think 80 explicitly support judicial review. And it was not unheard of in state courts at the time.

 

[NYcarbineer]

It is implied, and Marbury is simply an early example of how implied powers manifest themselves.

I think its more than "implied." Morever the Fed Paper 80 states

The judiciary authority of the Union is to extend:

Second. To treaties made, or which shall be made, under the authority of the United States, and to all cases affecting ambassadors, other public ministers, and consuls. These belong to the fourth class of the enumerated cases, as they have an evident connection with the preservation of the national peace.

Third. To cases of admiralty and maritime jurisdiction. These form, altogether, the fifth of the enumerated classes of causes proper for the cognizance of the national courts.

Fourth. To controversies to which the United States shall be a party. These constitute the third of those classes.

........

and the current court is creating corporate rights just as the Warren Court created individual rights.

Well, it's either "implied" or it's stated, and even most of the liberals have given up on the lie that it's stated. There is no other choice. And that the founders specifically wrote an enumerated power document, the idea that they included implied powers is ridiculous.

Then what was the point of having a Bill of Rights if no enumerated power was included to give the federal government the power to protect those rights, and no implied power could be legitimately invoked to do so?

 

[Contumacious]

Actually my opinion is the only one that counts since that is what I'm posting on a message board. I consider other's opinions and often change my views based on that, but my opinion is still up to me.

What made you think that I was posting SCOTUS's opinion? That's just tripping.

And now you are lying. You twist opinions and facts to fit your philosophy instead of your philosophy to fit opinions and facts. That's how folks learn.

Actually I was just mocking you for your stupid post that my opinion doesn't matter. If that's true, why are you here since your opinions don't matter?

Comrade Starkiev is a legend..........in his own mind.

.

 

[NYcarbineer]

It is implied, and Marbury is simply an early example of how implied powers manifest themselves.

I think its more than "implied." Morever the Fed Paper 80 states

The judiciary authority of the Union is to extend:

Second. To treaties made, or which shall be made, under the authority of the United States, and to all cases affecting ambassadors, other public ministers, and consuls. These belong to the fourth class of the enumerated cases, as they have an evident connection with the preservation of the national peace.

Third. To cases of admiralty and maritime jurisdiction. These form, altogether, the fifth of the enumerated classes of causes proper for the cognizance of the national courts.

Fourth. To controversies to which the United States shall be a party. These constitute the third of those classes.

........

and the current court is creating corporate rights just as the Warren Court created individual rights.

Well, it's either "implied" or it's stated, and even most of the liberals have given up on the lie that it's stated. There is no other choice. And that the founders specifically wrote an enumerated power document, the idea that they included implied powers is ridiculous.

In a document such as the Constitution where implied powers are included, they are materially no different than stated powers.

 

[Uncensored2008]

Yes, of course.

The Founding Fathers never imagined that Americans, having suffered through King George's tyranny , would ever allow power to be concentrated.

They were wrong. So , how do we force the scumbags to stop activism and limit themselves to just reviewing a case without interjecting their , or their political party , opinion.

.

A Constitutional Amendment of initium, or "Original Text" that would require all court decisions to show that the verbiage of the Constitution supports the ruling they make. When the Courts create a new law such as the Abortion Law, they must show the actual words in the Constitution that support the law.

 

[Uncensored2008]

What FP are you referring to? I think 80 explicitly support judicial review. And it was not unheard of in state courts at the time.

Is it your thought that the Constitutional Convention simply "forgot" about a Constitutional Litmus?

Hardly, wrote Hamilton;

{[T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.}

BUT the Convention rejected his argument and the clause was omitted from the Constitution.

So again I ask, do you support the idea that a provision which fails legitimate legislative procedure, should be declared law by unelected judges? What is the point of having law at all?

 

[JakeStarkey]

Actually my opinion is the only one that counts since that is what I'm posting on a message board. I consider other's opinions and often change my views based on that, but my opinion is still up to me.

What made you think that I was posting SCOTUS's opinion? That's just tripping.

And now you are lying. You twist opinions and facts to fit your philosophy instead of your philosophy to fit opinions and facts. That's how folks learn.

Actually I was just mocking you for your stupid post that my opinion doesn't matter. If that's true, why are you here since your opinions don't matter?

Yours doesn't matter because it means nothing. Now facts can shape opinions, so try it.

 

[JakeStarkey]

And now you are lying. You twist opinions and facts to fit your philosophy instead of your philosophy to fit opinions and facts. That's how folks learn.

Actually I was just mocking you for your stupid post that my opinion doesn't matter. If that's true, why are you here since your opinions don't matter?

Comrade Starkiev is a legend..........in his own mind..

You know who says "hi".

 

[kaz]

And now you are lying. You twist opinions and facts to fit your philosophy instead of your philosophy to fit opinions and facts. That's how folks learn.

Actually I was just mocking you for your stupid post that my opinion doesn't matter. If that's true, why are you here since your opinions don't matter?

Yours doesn't matter because it means nothing. Now facts can shape opinions, so try it.

LOL, do as you say, not as you do, eh Jake?

You may see yourself as kelp who doesn't control your own destiny and you just flow in the tide of the ocean, but I don't see it that way. Even with an oppressive government growing more belligerent every day, the one who controls my destiny the most is me.

 

[Quantum Windbag]

She's right that Ware v. Hylton was a case of Judicial Review before Marbury v. Madison.

To my op, it's still a red herring. It only goes to the side discussion of whether the Supreme Court ever did Judicial Review before Marbury v. Madison or not.

What it does not do is support in any way the court has Judicial Review based on anything except their own declaration that they do, it's still the court taking it upon itself to declare itself keeper and manipulator of the Constitution.

And that is a red herring in the end to the op as well since I'm proposing to codify that the States are the ones who should keep the Federal government in check and not the Courts.

The courts are the judiciary, they are to "interpret" the laws passed by the legislature in the cases brought by the executive branch who "enforce" the laws. That somehow inherent in that is that the judiciary then get to judge the laws is preposterous. And in the end, the liberals don't even believe that or care. They just care that it's working for them.

You still have the same problem that your OP did, you aren't even wrong.

It's sad when someone I know to not be a liberal doesn't recognize the implication of the 17th amendment. The 17th amendment was worse than authorizing the income tax because it removed any State limit over Federal power. Since you trust liberal dictatory judges and call even trying to put a balance with State governments insane, your credibility on this is shot and it's hard to take your points seriously.

How, exactly, would you deal with a facially unconstitutional law if the courts did not have the power of judicial review? If you take that power away from the courts, how would you deal with a law that made it legal for police to kill people who forget to use their turn signals? If you want an example of what happens when courts cannot review laws, and can only do what the government says, take any tyranny from history and examine how the courts work.

I answered this question in the op.

The point of the op is that checks and balances within the Federal government don't work. The Supreme Court and the legislature both want to grow Federal power. They have the same incentive, that's why it doesn't work. State governments don't have the same incentive, the more the Federal government takes from them the less they have. So I am proposing a check where the States have the check and balance with the Feds to protect the people. Power divided is power checked.

Your endless references to State rights being inane is what's inane.

There you go jumping to conclusions again.

While there are myriad problems with the 17th Amendment, there are also problems inherent in repealing it. You need to imagine a state where a Republican governor wants to appoint a Republican to the US Senate, but cannot because Democrats control the key legislative process that allows hi to do so. Now imagine that this is multiplied just enough to give the Democrats a majority in the Senate that they wouldn't have if every state had a sitting Senator.

On top of that you have to remember that, even with the 17th Amendment part of the Constitution, most states were already electing their Senators. This system is the same system In other words, the only place it made a difference was in states that, for whatever reason, didn't already have both Senators in the Senate. You might not like what the you see now, but you really need to go back and compare it to the system that actually enshrined the idea that states power is limited before you demand we go back to it.

As for the checks and balances, the reason they don't work is that, ultimately, the courts are the government. The only reason it isn't worse is that the courts actually do their job occasionally. Making it easier for the government to ignore the checks is not going to make it better.

 

[kaz]

Actually I was just mocking you for your stupid post that my opinion doesn't matter. If that's true, why are you here since your opinions don't matter?

Comrade Starkiev is a legend..........in his own mind..

You know who says "hi".

We also know who spends most of their day high...

I suppose just seeing yourself as a victim of life makes it easy to brush off your failures, but I can't imagine wanting to feel that way. I like being in control of my own destiny and believing that it is so.

 

[kaz]

You still have the same problem that your OP did, you aren't even wrong.

It's sad when someone I know to not be a liberal doesn't recognize the implication of the 17th amendment. The 17th amendment was worse than authorizing the income tax because it removed any State limit over Federal power. Since you trust liberal dictatory judges and call even trying to put a balance with State governments insane, your credibility on this is shot and it's hard to take your points seriously.

How, exactly, would you deal with a facially unconstitutional law if the courts did not have the power of judicial review? If you take that power away from the courts, how would you deal with a law that made it legal for police to kill people who forget to use their turn signals? If you want an example of what happens when courts cannot review laws, and can only do what the government says, take any tyranny from history and examine how the courts work.

I answered this question in the op.

The point of the op is that checks and balances within the Federal government don't work. The Supreme Court and the legislature both want to grow Federal power. They have the same incentive, that's why it doesn't work. State governments don't have the same incentive, the more the Federal government takes from them the less they have. So I am proposing a check where the States have the check and balance with the Feds to protect the people. Power divided is power checked.

Your endless references to State rights being inane is what's inane.

There you go jumping to conclusions again.

Which are...

While there are myriad problems with the 17th Amendment, there are also problems inherent in repealing it. You need to imagine a state where a Republican governor wants to appoint a Republican to the US Senate, but cannot because Democrats control the key legislative process that allows hi to do so. Now imagine that this is multiplied just enough to give the Democrats a majority in the Senate that they wouldn't have if every state had a sitting Senator.

I never said it was perfect, in fact my whole point was there is no perfect solution, so I am pitting the States against the Federal government to balance power. If I thought the States were perfect, I would have put them in control.

I keep using the phrase power divided is power checked. That is what I meant. Laws have to be passed in my system by the DC based House, signed by the DC based President (or overridden by both Houses), and the State controlled Senate. Power divided.

On top of that you have to remember that, even with the 17th Amendment part of the Constitution, most states were already electing their Senators. This system is the same system In other words, the only place it made a difference was in states that, for whatever reason, didn't already have both Senators in the Senate. You might not like what the you see now, but you really need to go back and compare it to the system that actually enshrined the idea that states power is limited before you demand we go back to it.

I'd still leave it up to States to chose how to select Senators. I'm hoping they will have learned from the failure we have.

This is an irrelevant post, just saying my solution isn't perfect beyond being "no duh" is not the point. The point is which system is better. The courts, which are part of the Federal government keeping the Federal government in check, or the States? I say no brainer, the States.

 

[kaz]

I think its more than "implied." Morever the Fed Paper 80 states

The judiciary authority of the Union is to extend:

Second. To treaties made, or which shall be made, under the authority of the United States, and to all cases affecting ambassadors, other public ministers, and consuls. These belong to the fourth class of the enumerated cases, as they have an evident connection with the preservation of the national peace.

Third. To cases of admiralty and maritime jurisdiction. These form, altogether, the fifth of the enumerated classes of causes proper for the cognizance of the national courts.

Fourth. To controversies to which the United States shall be a party. These constitute the third of those classes.

........

and the current court is creating corporate rights just as the Warren Court created individual rights.

Well, it's either "implied" or it's stated, and even most of the liberals have given up on the lie that it's stated. There is no other choice. And that the founders specifically wrote an enumerated power document, the idea that they included implied powers is ridiculous.

Then what was the point of having a Bill of Rights if no enumerated power was included to give the federal government the power to protect those rights, and no implied power could be legitimately invoked to do so?

I proposed how to protect those rights. Do you have any point which addresses my actual argument? If you want to argue this one, you have to argue it with someone who believes this.

 

[kaz]

I think its more than "implied." Morever the Fed Paper 80 states

The judiciary authority of the Union is to extend:

Second. To treaties made, or which shall be made, under the authority of the United States, and to all cases affecting ambassadors, other public ministers, and consuls. These belong to the fourth class of the enumerated cases, as they have an evident connection with the preservation of the national peace.

Third. To cases of admiralty and maritime jurisdiction. These form, altogether, the fifth of the enumerated classes of causes proper for the cognizance of the national courts.

Fourth. To controversies to which the United States shall be a party. These constitute the third of those classes.

........

and the current court is creating corporate rights just as the Warren Court created individual rights.

Well, it's either "implied" or it's stated, and even most of the liberals have given up on the lie that it's stated. There is no other choice. And that the founders specifically wrote an enumerated power document, the idea that they included implied powers is ridiculous.

In a document such as the Constitution where implied powers are included, they are materially no different than stated powers.

Google the word "enumerated" and get back to me.

 

[bendog]

Well, it's either "implied" or it's stated, and even most of the liberals have given up on the lie that it's stated. There is no other choice. And that the founders specifically wrote an enumerated power document, the idea that they included implied powers is ridiculous.

Then what was the point of having a Bill of Rights if no enumerated power was included to give the federal government the power to protect those rights, and no implied power could be legitimately invoked to do so?

I proposed how to protect those rights. Do you have any point which addresses my actual argument? If you want to argue this one, you have to argue it with someone who believes this.

Congress can wave it's magic commerce clause wand.